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London Borough of Southwark (20 013 690)

Category : Planning > Other

Decision : Not upheld

Decision date : 20 Aug 2021

The Ombudsman's final decision:

Summary: Mr C complained about the Council’s consideration of a prior approval application to demolish a vacant public house and planning application to redevelop the site of the former public house. We have ended our involvement as we cannot achieve the outcome sought.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complains about the Council’s consideration of a prior approval application to demolish a vacant public house and planning application to redevelop the site of the former public house to provide both retail space and residential properties.
  2. Mr C says because of the Council’s fault he and other residents will suffer from an unacceptable development which has reduced the value of their properties and will cause loss of light and privacy.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))
  2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)

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How I considered this complaint

  1. I read the papers provided by Mr C and discussed the complaint with him. I have explained my draft decision to Mr C and the Council and considered the comments received before reaching my final decision.

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What I found

Key events

  1. The Council approved a prior approval planning application for the demolition of a vacant public house in March 2017. Mr C says the Council made mistakes in the way it gave approval.
  2. The Council subsequently granted planning permission for the redevelopment of the site with a building providing both retail and residential space in February 2019. Local residents sought a judicial review of the Council’s decision on four grounds. The High Court quashed the decision on one of the grounds that the Council had failed to have regard for the relevant policy consideration of density.
  3. The applicant made some changes and the same application (with amendments) was approved by the Council’s planning sub-committee in March 2020 and the decision was issued in August on completion of a legal agreement.
  4. Local residents sent a pre-action protocol to the Council ahead of seeking a judicial review of this further decision. The Council responded to the pre-action protocol. Residents did not make a further claim for judicial review.
  5. Mr C complained to the Ombudsman in March 2021.

My consideration

  1. Any complaint now about the Council’s consideration of the prior approval planning application for the demolition of a vacant public house in March 2017 is caught by the restriction outlined at paragraph 4 above. Mr C was aware of the decision at the time but did not complain to the Ombudsman until March 2021. I see no reason to accept a late complaint about this matter now.
  2. The February 2019 planning permission to redevelop the site has been quashed by the High Court and the Ombudsman could not investigate the same issues that have been considered by the Court (see paragraphs 5 and 7 above).
  3. Mr C says he is seeking the quashing of the planning permission the Council issued in August 2020 or changes to it to reduce its impact. Mr C is also seeking £200,000 for the reduction in value he says the development will cause to his property.
  4. The planning permission on this application has been issued, is valid and can be implemented. We cannot seek reconsideration of the application or quash the planning permission which would be a matter for the courts. We also cannot seek changes to or a reduction in the permission that has been issued. This means we cannot achieve the outcome Mr C is seeking and the level of financial compensation being sought would also be more appropriate for the courts.
  5. Mr C also had an available legal remedy for the most recent application. In the particular circumstances of this case, I consider it would have been reasonable for Mr C to use this remedy.

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Final decision

  1. I have ended my investigation for the following reasons:
      1. we cannot investigate the Council’s consideration of the 2017 prior approval application to demolish a vacant public house due to the passage of time;
      2. we cannot investigate the Council’s original consideration of the subsequent application to redevelop the site as this decision has been quashed by a court;
      3. we cannot provide the outcome Mr C is seeking of quashing or reducing the most recent planning permission; and
      4. I consider it would have been reasonable in the particular circumstances of this complaint for Mr C to have used his legal remedy for the most recent application.

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Investigator's decision on behalf of the Ombudsman

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